EXECUTIVE REPORT
Cope with claims
Adam Bernstein discusses what actions an employer can take if an employment tribunal claim lands on their desk.
From 29 July 2013, employees wishing to pursue an employment tribunal claim against their employer have had to pay a fee to do so. Not surprisingly, the number of claims has dropped considerably - from 50,000 single claims in the first quarter of 2013, to just under 5,200 in the fourth quarter of 2016. While that is a very large drop, those cases that are brought may well be more troublesome, as the claimants feel strongly enough to pay a fee.
So, if you receive an employment tribunal claim - an ET1 form - what steps should you take? According to Mark Stevens, a solicitor at Veale Wasbrough Vizards, the priority is to check the initial action required - and time is of the essence. “Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal. If you do not comply with the deadline, the employment tribunal may enter a default judgment against you.”
Businesses should always check that the employee has submitted their claim(s) within the allotted time. The general rule is that an employee has three months from the termination of their employment to contact ACAS (Advice, Conciliation and Arbitration Service -
www.acas.org.uk) to initiate pre-claim conciliation. If the worker is alleging discrimination, they have three months from the date of the alleged discriminatory act, or the last event in a series of discriminatory acts about which they are complaining. For wages claims, a worker will have three months less one day from the date that the wages were due to be paid.
“The employment tribunal will usually check these deadlines have been complied with,” says Mark Stevens, “but it is always useful to check. Also, if the employee or worker has failed to get their claim in before the relevant deadline, then the employment tribunal will have no jurisdiction to hear the claim.” The employee or worker will also need to confirm they have complied with pre-claim conciliation by setting out details of the ACAS Certificate Number on the ET1.
Mark Stevens explains that some legal protections only apply to employees, such as claims of unfair dismissal and for a statutory redundancy payment. “If a claimant is arguing unfair dismissal and they were engaged as a worker, then the employer should raise this in the ET3. Generally speaking, an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years of service. Interestingly, claimants sometimes pursue the wrong employer. It may be that you have been incorrectly identified as being the employer liable for the claim, for instance, as a result of
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a TUPE transfer, where employees transfer from one business owner to another.” He adds that it is worth checking if the claimant is pursuing a claim in the correct jurisdiction. Usually, the claims will be set out on the ET1 form, but there may be further allegations included within any attached information. Your defence should respond to each specific complaint being made.
ACAS offers advice to employers and employees.
If a resolution cannot be reached, the case may proceed to a hearing, and witness evidence will be required from those involved. Mark Stevens suggests taking initial statements from relevant employees. “This is particularly useful when the events leading to the claim will be fresh and clearer in everyone’s mind. You should also begin to collate any relevant documents and put together your version of events and chronology.” The disclosure process will require all relevant evidence (whether or not it is helpful to your case) to be sent to the claimant. For this reason, all involved - managers and employees - should be told to preserve documents.
If the ET1 is vague, part incomplete or contradictory, then an employer could consider serving the employee with a request for Further and Better Particulars of the Claim. “Employers should always take advice before issuing a request here. Whilst this process represents a useful method of finding more out about an employee's claim, it can also give the employee a second opportunity to get their claim into shape.”
Settlement should always be considered, particularly if it appears that the employee has a good chance of success, because of “the possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend any claim. An early settlement could make good commercial sense.”
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